MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 May 1999
         DOCKET NUMBER: AC97-11215
                                    AR1999023562

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
Mr. David H. Keller		Analyst

The following members, a quorum, were present:

Mr. Edward Williamson		Chairperson
Ms. Meta Waller		Member
Mr. Kenneth L. Wright		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that her records be corrected to show that she was separated with physical disability retirement rather than disability severance pay.

APPLICANT STATES: That the president of her physical evaluation board (PEB) focused too much on her two pregnancies while in the Army which had nothing to do with her disabilities. That the Army Physical Disability Agency (USAPDA) would not wait for additional medical evidence about her memory loss and urology conditions. That she made the PEB aware of these conditions and she had to obtain medical evidence on her own through the Army with no help from the PEB or USAPDA. In support of her request, she submits copies of her neuropsychological report, her election for a formal PEB, her attorney’s November 1996 letter to the commander of the Army hospital, and her attorney’s letter to the USAPDA in December 1996.

EVIDENCE OF RECORD: The applicant's military records show:

She enlisted on 27 January 1993 and, after training, was assigned to Fort Hood, Texas.

On 1 February 1996 the applicant was involved in a motor vehicle accident during an ice storm, sustaining an unstable anterior and posterior pelvic fracture, involving specifically the left iliac wing with severe displacement and both superior and inferior pubic rami displacement. She was hospitalized and underwent an open reduction and internal fixation of both the left iliac wing fracture via posterior approach, and anterior approach for open reduction and internal fixation of her right pubic rami fractures.

On 12 September 1996 a medical evaluation board (MEB) convened and produced diagnoses of left patellofemoral chondritis, mild; stress incontinence, moderate; severe pelvic fractures; moderate post-fracture sacroiliac joint pain with moderate arthritis, left side; and early excessive callus formation, left posterior iliac wing fracture. The MEB found that the applicant did not meet medical retention standards and recommended her case be considered by a PEB. The findings and recommendations of the MEB were approved.

On 25 October 1996 an informal PEB found the applicant physically unfit due to pain, status post pelvic fractures, with sacroiliac arthritis. The PEB recommended that she be separated with severance pay due to disability rated at 10 percent. The applicant did not concur and demanded a formal hearing with personal appearance.



A formal PEB was held on 26 November 1996 and reaffirmed the prior findings, but with status post severe multiple pelvic fractures and increased the disability rating to 20 percent. The applicant again did not concur and requested a delay in the processing until additional medical examinations relating to her mental and urology conditions were completed. The PEB considered the information provided by the applicant, but reaffirmed their prior findings and recommendations. The PEB was of the opinion that the case did not need to be delayed any further, but indicated that any additional medical evidence would be considered while the case was being processed.

On 11 December 1996 the applicant submitted a rebuttal and request for delay to the USAPDA. The agency responded to her rebuttal that the MEB authorities were contacted and did not intend to recall the case for any additional addendum. There were no new urology findings, nor new evidence submitted, which would require the case to be returned to the PEB for further review.

The applicant was separated on 27 January 1997 due to physical disability with separation pay. She received $8,080.80.

The applicant requested another review of her case through the Assistant Secretary of the Army for Manpower and Reserve Affairs to the Commanding General, USAPDA. Her request contained new evidence of a mild short term memory loss. The additional evidence was reviewed and it was determined that such mild memory loss would not have been an unfitting condition. Neither her command nor the MEB ever mentioned such loss being a factor in her ability to perform her military duties.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30 percent.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating


Title 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the USAPDA. The Board was advised that the applicant received a full and fair hearing, that the questions directed to her concerning her ability to adequately care for her children provided the PEB members with important information on her overall physical and mental abilities and were not inappropriate. There were only minimal impairments related to the applicant’s stress incontinence and, as noted during the MEB, this condition did not significantly interfere with her military duties. The additional psychologist’s report cited only mild short term memory loss. The condition was never mentioned by the MEB, and the applicant did not mention it as a problem during her MEB process. The applicant’s main complaint was pain. Unfitness for pain is limited to a maximum of 20 percent.

On 17 March 1999 the applicant was furnished a copy of the foregoing advisory opinion for her rebuttal. She failed to respond within the established 30-day time limit offered her by this agency.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of her discharge. Her separation with severance pay was in compliance with law and regulations.

2. The applicant has not provided any new material medical evidence not previously considered by the PEB or USAPDA.

3. Impairments do not automatically become unfitting compensable conditions. A preponderance of the evidence must establish that the impairments caused the applicant to be unable to perform the normal duties of her office. The evidence showed that the applicant’s stress incontinence and mild memory loss did not stop her from her normal duties. Thus, such conditions were not unfitting, nor compensable.

4. In view of the foregoing, there is no basis for granting the applicant's request.



DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-11215/AR1999023562
SUFFIX
RECON
DATE BOARDED	19990527
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.01
2.	108.02
3.
4.
5.
6.